Family law
- action for the dissolution of marriage: settling the conditions for divorce by mutual agreement, drafting the statement of claim
- settling the exercise of parental custody and contact rights
- the determination and the variation of child maintenance
- marital and cohabitees’ property contracts, division of property by agreement or through litigation
The two routes: divorce by mutual agreement or divorce on the facts
Under the Civil Code, where the spouses jointly request the dissolution of the marriage on the basis of their final and freely formed agreement, and have reached agreement on the ancillary matters specified by the Act, the court does not examine the causes which led to the breakdown of the marriage.
This is of considerable practical significance: in a divorce by mutual agreement the details of private life need not be laid before the court, and the proceedings are also more predictable. The price of this, however, is that the agreement must extend to every ancillary matter — if a single element is missing, the agreement is not comprehensive.
What the ancillary matters are
In respect of the common child, the exercise of parental custody, contact between the child and the parent living apart from the child, the maintenance of the child, the use of the matrimonial home, and — where such a claim arises — spousal maintenance.
Where the parties agree on joint parental custody, they need not settle the question of contact, but they must determine the child’s place of residence.
Matters to be attended to in the agreement
The provision on contact must be sufficiently detailed to be enforceable subsequently: frequency, duration, whether it is continuous or periodic, and the place, time and manner of handing over and returning the child. Wording which is too general is of no use in the event of a dispute.
As regards child maintenance, it is advisable to settle not only the amount but also the date on which it falls due, the manner of payment and the question of subsequent variation.
Property law
A matrimonial property contract and a cohabitation property contract are not intended for the event of divorce alone: the regulation of property relations in advance serves precisely to prevent dispute. The division of joint marital property may be effected by agreement or through litigation; settlement by agreement is as a rule quicker and less costly.
Frequently asked questions
How long does it take to divorce by mutual agreement?
That depends on the court’s caseload and on how complete the agreement is. What can be influenced is the quality of the agreement. An incomplete settlement results in an order to remedy deficiencies and in a further hearing.
Does each party need an attorney-at-law?
An attorney-at-law drafting the instrument may not represent two parties with opposing interests at the same time. In a divorce by mutual agreement I act for one of the parties, and I inform the other party in writing that no retainer relationship comes into being with them.
Can maintenance or contact be varied at a later date?
Yes, in the event of a substantial change in circumstances. That, however, requires fresh proceedings, and it is therefore advisable to word the first agreement carefully.